37 N.J. Eq. 347 | New York Court of Chancery | 1883
Wilson J. H. Bruch, of.Easton, Pennsylvania, died in May, 1880, leaving a will dated in June, 1878. By the will, after directing payment of his debts and funeral expenses, he devised and bequeathed all his property, real and personal, to his executor, John J. Detwiller, the complainant, on the following trusts:
The executor asks for a construction of the wili on various points: whether the trusts for the purchase of the burial plot, the erection, of a monument and the erection of the fence, for the keeping of the plot, monument and inclosure in good repair, and for the establishment and maintenance of a military band, are valid; whether the gift of $10,000 for the band is entitled to preference in payment over the other legacies, in case there should not be sufficient assets to pay all; whether the codicil was properly executed; and, if so, whether the gift to Elizabeth Hamlin therein is entitled to priority over the legacies given by the will itself; whether, in case it shall turn out that there was sufficient funds to pay the lawful legacies without selling the real estate, the executor would still be authorized to sell the property, and whether, as to any surplus after paying the-debts, expenses and lawful legacies, the testator died intestate thereof, or whether it is to be distributed among the legatees under the sixth clause of the will. He also asks that he be directed as to what sum he shall expend upon the monument and fence, and what sum he shall retain to provide for repairs to the burial plot, monument and fence.
The estate of the testator, it is said, falls' very short of being sufficient for the purposes which he contemplated. The legacies given by the will to his relations amount to $13,100, to which is to be added the sum of $5,000 for the legacy given to Elizabeth Haml’in by the codicil. According to the bill, the estate will not exceed $35,000. The legacies and trust funds, all together, amount to $73,100, reckoning the cost of the burial plot, monument and fence at the minimum sum fixed therefor in the
The trust to buy a burial plot and erect a monument thereon to the memory of the testator, and to provide a fence for the plot to protect it and the monument, is valid. To hold otherwise would be to deny the right of the testator to dispose of his estate. It is conceded that a testator may make provision by his will for the erection of a memorial to himself at his grave, but his right to provide for one so expensive as that which this testator contemplated, and for which he has provided in the will under consideration, is denied. It is obvious that if the right to dispose of any part of his estate for the purpose exists, as it undoubtedly does, this court cannot limit its exercise except as the necessities of the administration may require.
The suggsstion 'that a much less expensive and ostentatious memorial would be more appropriate than that for which the testator has seen fit to provide, cannot enter into the consideration of the matter. The testator was the sole judge on that subject, and his judgment is not liable to be reviewed in any court. As this court manifestly cannot deal with the provision as a violation of good taste, neither can it deal with it on the ground that it is a wasteful expenditure. As to that, too, the testator was the sole judge. In Mellick v. President and Guardians of the Asylum, 1 Jac. 180, where the testator (the will was made in 1784), after giving various minute directions as to h'is funeral, and bequeathing several pecuniary legacies, devised his freehold estates to trustees, upon trust, to sell and apply the produce as follows: £2,000 in erecting a monument to perpetuate his memory in the parish church of St. John, Southwark; £100 to Hr. Samuel Johnson on condition of his writing an epitaph for it, and twenty guineas to the rector of the parish on his consenting to the placing up of the monument, the master of the rolls, Sir Thomas Plumer, said: “ Now, what are charitable uses have been enumerated in the statute of Elizabeth and in Duke. They are when the donor appropriates a gift, either to charity or to some public purpose, such as the repair of bridges, ports and havens &o., not operating in any manner to the benefit of himself. But
The trust to provide for repairs is not valid. It is a perpetual one, and the object is not a charity. It is purely private, the keeping in repair of the testator’s burial place. Though he speaks of the monument and burial place as a “ family monument and burial place,” they are merely his own. He appears to have had no family of his own, and they were intended for himself alone. And if they had been intended for his family it would make no difference. The gift is not to a general public use. It is not within the legal definition of a charity. • Mr. Justice Gray’s well-known definition of a charity in a legal sense, is “ a gift to be applied consistently with existing laws for the benefit of an indefinite number of persons, either by bringing
The American courts have followed the English rule against perpetuities except where qualified by statute. Trusts created for charitable or public purposes here, as there, are not subject to the rule. The direction in this ease does not limit the continuance of the fund for repairs, and the testator makes no disposition whatever of the principal. The provision, therefore, is to be regarded as creating a perpetuity—as locking up $5,000 forever for the purpose of keeping the testator’s burial place and monument in good repair. That object is not a charity, and therefore the bequest, because it is a perpetuity, cannot be sustained. Rickard v. Robson, 31 Beav. 244; Hoare v. Osborne, L. R. (1 Eq.) 585; Fisk v. Attorney-General, L. R. (4 Eq.) 521; Fowler v. Fowler, 10 Jur. (N. S.) 648; Lloyd v. Lloyd, 10 Eng. L. & Eq. 139; and Re Williams, L. R. (5 Ch. Div.) 735, are cases in which such bequests have been held void as perpetuities. See, also, Wms, on Exrs. 1073; 2 Redf. on Wills 851; 1 Jarm. on Wills 211. In Cool v. Higgins, 8 C. E. Gr. 308, the exécutors were specially directed by the will to erect a fence around a cemetery lot, and no one else was'either required or authorized to do it, and the amount required for it was charged upon the land. It was held that suit for the money was rightly brought by the executors. But there was no perpetual trust in that case.
For the same reasons just given, the trust for the establishment and maintenance of a military band cannot be sustained. The object is not charitable, and the trust is in express terms a perpetuity. The purpose of the testator was to provide for the establishment and maintenance forever of a military band of musicians, to be called by his name, and whose sole duty it should be to march to his grave on the recurring anniversary of his death, and on the holidays established by law, and “ other proper occasions,” and there play a funeral march and other appropriate (presumably solemn) music. The sole object of this
The question whether the codicil was duly executed cannot be raised here. The subject is not within the jurisdiction of this court. Trustees v. Wilkinson, 9 Stew. Eq. 141.
The gift to Elizabeth Hamlin, in the-codicil, is entitled to no preference over the legacies given by the will, but will abate proportionately with them in case of deficiency.
The direction of the testator to sell his real estate is positive. He directs that there shall be no payment of the legacies until after the sale of the real property. According to the statement of the bill as to the amount of the estate, the personal property will not provide enough to pay the valid legacies and furnish the minimum sum fixed in the will for the' cost of the burial. plot, monument and fence. It will, therefore, be necessary to sell the real estate, and to sell all of it, except that the use of which is given to Mrs. Russel.
Should it, however, not be necessary to sell the real estate for the lawful purposes of the will, a sale need not be made; for the testator’s express object in directing that the real estate be converted into money was the complete distribution of the estate .among the persons and for the objects designated in the will, and if the failure of some of those objects should render a sale unnecessary, it should not be made.
If the estate prove to be not more than sufficient in amount to pay the legacies and raise the trust funds provided for by the will, and after paying the legacies and raising the money for the lawful trusts, there be a surplus, the testator must be held to have died intestate of such surplus. It is not disposed of by the will.' The sixth section provides that any surplus which may remain after payment of the legacies and trust funds, and providing for the purchase of the burial plot, and for the cost of